Carlos Miller is founder and publisher of Photography is Not a Crime, which began as a one-man blog in 2007 to document his trial after he was arrested for photographing police during a journalistic assignment.

He is also the author of The Citizen Journalist’s Photography Handbook, which can be purchased through Amazon.

California appeals court rules that police were wrong to release photos of deceased

February 10, 2010

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On a bright, sunny day in 2006, 18-year-old Nikki Catsouras took her father’s Porsche without permission and sped off down a California freeway at 100 mph before losing control and crashing into a toll booth.

She died instantly in a crash that decapitated her; a collision so horrific that the coroner would not even allow her parents to identify the body.

But pictures of her mangled body ended up online after they were leaked from a pair of California Highway Patrol officers conducting the investigation.

The pictures went viral, meaning they were accompanied by the usual mean-spirited comments you get from the usual anonymous idiots. And that understandably added to the stress the family was already going through.

So they responded with a lawsuit against the CHP on the grounds that the leaked pictures constituted an invasion of their privacy.

Although a judge stated that the officers’ actions were “utterly reprehensible,” not to mention a violation of departmental policy, he determined that no actual law was broken.

After all, if you can see something from a public street, you can photograph it. And if you can legally photograph it, you can legally distribute the photos.

Also, the photos being a legitimate part of the accident investigation, they should have been considered public record anyway, available upon request.

But last month, an appeals court reversed that decision.

In an opinion that contradicts previous California case law – as well as First Amendment case law – the appeals court gave a green light to the Catsouras family to sue the CHP for invasion of privacy, never mind the fact that dead people do not have a legal expectation of privacy.

The court believes that the surviving family’s privacy was invaded, even though their daughter was killed in broad daylight on a public freeway.

“We rely upon the CHP to protect and serve the public. It is antithetical to that expectation for the CHP to inflict harm upon us by making the ravaged remains of our loved ones the subjects of Internet sensationalism.”

But it could be argued that they were trying to service the public by sending out a warning against speeding, no different from the scare movies we were forced to sit through in grade school to keep us off drugs and so forth.

And even if they were sending the photos out for shock value, it should still be protected under the First Amendment. If anything, they should be subjected to termination for violating departmental policy.

The appeals court is essentially playing editor, nominating itself as gatekeeper of what it considers “sensationalist” news and photos.

But the First Amendment makes no exception to sensationalist news. Nor offensive or gruesome photos for that matter.

Coupled with the recent law to protect celebrities against photographers, the ruling is turning California into one of the least First Amendment friendly state in the nation. It’s hard to believe this is the same state that will probably be first in the nation to legalize marijuana.

The CHP officers argued, as anyone of us might, that they had a First Amendment right to disseminate the crime-scene photographs. Perhaps their judgment could be questioned. Perhaps their superiors should sanction them for forwarding crime-scene photographs. Indeed, no one is claiming that the CHP officers did not make an error in judgment. None of that should matter, given that the First Amendment guarantees us the right to speak truthfully about whatever we like. We may not lie, and we may not like fire in a crowded theater. Otherwise, though, we are free to say what we will.

Recognizing that the CHP officers forwarded unaltered photographs, the Court of Appeal still ignores their First Amendment defense. The Court acted as a super-censor: “Here, the picture painted by the second amended complaint is one of pure morbidity and sensationalism without legitimate public interst or law enforcement purpose.” Slip op. at 17.

Where is the “sensationalism” exception to the First Amendment? The First Amendment provides that “Congress [and the States, vis-a-vis the Fourteenth Amendment] shall make no law … abridging the freedom of speech [].” Even morbid and sensational speech is protected.

By allowing the lawsuit against the CHP officers to proceed, the Court of Appeal has made all of us unfree. Is your blogging morbid and sensationalistic? Some of mine is certainly hysteric. May the Court of Appeal, post hoc, extinguish my First Amendment rights because they don’t like one of my posts? Under Catsouras’s reasoning, what is stopping them?

The photos in question can be seen here. They are gruesome so don’t say I didn’t warn you. Also, be careful with the “uncensored video” as it appears to be contain malware.